EVENTS

NSA phone data collection program ruled unconstitutional

Using surprisingly strong language, US District Court judge Richard J. Leon issued a preliminary injunction yesterday to stop the NSA from proceeding with its major telephone wiretapping and data collection program against two people. The complaint was brought by conservative activist lawyer Larry Klayman and Charles Strange, the father of a cryptologist for the NSA and a support member for Navy SEAL Team VI who was killed in Afghanistan when his helicopter was shot down in 2011.

The judge said that that the governments program violated their Fourth Amendment guarantees.

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

The case clearly illustrates the importance of the revelations by Edward Snowden. In earlier cases challenging the wiretapping, the government had successfully dismissed the cases by arguing that the plaintiffs could not prove that such wiretapping programs existed and that their phones had been tapped and thus had no standing to sue. That defense no longer is valid. In his ruling, the judge cited the news reports by Glenn Greenwald on the Snowden documents to assert that the plaintiffs had solid grounds for their complaint because the government had been forced to acknowledge the existence of the programs.

In response to this disclosure, the Government confirmed the authenticity of the April 25, 2013 FISC Order, and, in this litigation and in certain public statements, acknowledged the existence of a “program” under which “the FBI obtains orders from the FISC pursuant to Section 215 [of the USA PATRIOT Act] directing certain telecommunications service providers to produce to the NSA on a daily basis electronic copies of ‘call detail records.'” Follow-on media reports revealed other Government surveillance programs, including the Government’s collection of internet data pursuant to a program called “PRISM.” See Glenn Greenwald & Ewen MacAskill, NSA Prism program taps in to user data of Apple, Google and others, GUARDIAN (London), June 6, 2013. (page 7)

He contrasted this with an earlier case brought by Amnesty International against Director of National Intelligence (and known perjurer) James Clapper where the plaintiffs were denied standing.

In Clapper the Supreme Court held that plaintiffs lacked standing to challenge NSA surveillance under FISA because their “highly speculative fear” that they would be targeted by surveillance relied on a “speculative chain of possibilities” insufficient to demonstrate a “certainly impending” injury. Moreover, the Clapper plaintiffs’ “self-inflicted injuries” (i.e., the costs and burdens of avoiding the feared surveillance) could not be traced to any provable government activity. That is not the case here.
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For the following reasons, I have concluded that the plaintiffs have standing to challenge both. First, as to the collection, the Supreme Court decided Clapper just months before the June 2013 news reports revealed the existence and scope of certain NSA surveillance activities. Thus, whereas the plaintiffs in Clapper could only speculate as to whether they would be surveilled at all, plaintiffs in this case can point to strong evidence that, as Verizon customers, their telephony metadata has been collected for the last seven years (and stored for the last five) and will continue to be collected barring judicial or legislative intervention…. In addition, the Government has declassified and authenticated an April 25, 2013 FISC Order signed by Judge Vinson, which confirms that the NSA has indeed collected telephony metadata from Verizon. (p. 36, 37)

He said that the government had also willfully violated the laws designed to protect the privacy of individuals within the program but that these violations and censures by the FISC courts also only came to light because of Snowden’s revelations: “Both Judge Walton’s and Judge Bates’s opinions were only recently declassified by the Government in response to the Congressional and public reaction to the Snowden leaks.” (p. 23)

The judge made two important points. Although this is a preliminary injunction, he seemed pretty certain that the facts of the case were such that he would rule the same way after a full hearing. And the second was that he rejected the Obama administration’s claim that the metadata being collected was not subject to Fourth Amendment protections because of the 1979 precedent of Smith v. Maryland, because changes in communication technology had made that precedent unworkable today. (I wrote about the problems with that precedent earlier.)

Indeed, the question in this case can more properly be styled as follows: When do present-day circumstances-the evolutions in the Government’s surveillance capabilities, citizens’ phone habits, and the relationship between the NSA and telecom companies become so thoroughly unlike those considered by the Supreme Court thirty-four years ago that a precedent like Smith simply does not apply? The answer, unfortunately for the Government, is now. (p. 45)
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It’s one thing to say that people expect phone companies to occasionally provide information to law enforcement; it is quite another to suggest that our citizens expect all phone companies to operate what is effectively a joint intelligence-gathering operation with the Government. (p. 48)
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Put simply, people in 2013 have an entirely different relationship with phones than they did thirty-four years ago… Records that once would have revealed a few scattered tiles of information about a person now reveal an entire mosaic-a vibrant and constantly updating picture of the person’s life. Whereas some may assume that these cultural changes will force people to “reconcile themselves” to an “inevitable” “diminution of privacy that new technology entails,” I think it is more likely that these trends have resulted in a greater expectation of privacy and a recognition that society views that expectation as reasonable. (p. 53-55)

It was the widespread and almost indiscriminate nature of the data gathering by the government that came in for the harshest criticism.

I cannot imagine a more “indiscriminate” and “arbitrary invasion” than this systematic and high-tech collection and retention of personal data on virtually every single citizen for purposes of querying and analyzing it without prior judicial approval. Surely, such a program infringes on “that degree of privacy” that the Founders enshrined in the Fourth Amendment. Indeed, I have little doubt that the author of our Constitution, James Madison, who cautioned us to beware “the abridgement of freedom of the people by gradual and silent encroachments by those in power,” would be aghast. (p. 64)

The exposure of the government’s serial lies and exaggerations (again a result of the Snowden revelations) about how these programs are necessary to protect the nation and how successful they have been in thwarting them, seems to be finally catching up with them.

Yet, turning to the efficacy prong, the Government does not cite a single instance in which analysis of the NSA’s bulk metadata collection actually stopped an imminent attack, or otherwise aided the Government in achieving any objective that was time-sensitive in nature. In fact, none of the three “recent episodes” cited by the Government that supposedly “illustrate the role that telephony metadata analysis can play in preventing and protecting against terrorist attack” involved any apparent urgency. (p. 61)

He has ordered a stay of his ruling pending appeals, which the government is certain to do. The testiness of the judge’s tone can be seen in that while granting a six-month stay of his ruling for the government to stop collecting the metadata of the two plaintiffs, he told them that the time given to them to appeal should also be used to be prepare to destroy the data immediately if required to do so. In other words, they should not use that as a stalling tactic.

In a statement distributed by the journalist Glenn Greenwald, who was a recipient of leaked documents from Mr. Snowden and who wrote the first article about the bulk data collection, Mr. Snowden hailed the ruling.

“I acted on my belief that the N.S.A.’s mass surveillance programs would not withstand a constitutional challenge, and that the American public deserved a chance to see these issues determined by open courts,” Mr. Snowden said. “Today, a secret program authorized by a secret court was, when exposed to the light of day, found to violate Americans’ rights. It is the first of many.”

The ball is now in the government’s court. They will fight this tooth and nail. But there are other cases in the works too.

Yes, the government will try to circumvent laws in the many ways it has at its disposal. But as yet, it has not violated a direct court order, at least as far as I am aware. But in addition, these rulings serve the purpose of delegitimizing their claims that what they are doing is legal. That is not an inconsiderable thing.

They’ll just tweak it (or say they tweaked it) slightly. It’s not Mass Surveillance, it’s “Data flow examination”.
Until people start going to jail and state secrets stops being abused, nothing will change.

That assumes everyone will cooperate. The government doesn’t have the data to begin with, it must capture it from companies.

Many of the larger tech companies now find it advantageous to openly disagree with the government about this sort of program. As realistic options become available, other options will likely surface that are more pro-consumer privacy. Currently this isn’t even an option, see Lavabit.

If a telephone company believes itself open to losing a lawsuit for giving data to the government, it will cease handing over that data. It may take a very specific precedent to make it clear to them that’s what is happening but fortunately this case appears to be doing exactly that.

The FISA court wasn’t really a court. There was no one to follow up on the excesses. The descriptions I keep hearing make me think they functioned more like a very confused regulator. And they didn’t do a very good job of it.